The Florida Bar

Florida Bar Journal

Where There Is Fire, There Is Smoke: Issues Involving Smokers and Those Exposed to Smoke in the Wor

Labor and Employment Law

Many social and political issues in America are litigated in the work place; and now employers should add smoking to the litigation litany which should be considered in making workplace decisions. Where there is litigation over firing employees in the near future, smoke may be one of the factors to be evaluated.

The concept of anecdotal anarchy is well chronicled in publications showing that as an increasing number of interest groups have used the traditional model of labor law to push for additional status, recognition, protection, and means of promulgating rights which enable them to litigate workplace decisions, there is an inconsistency between the various laws which have to be administered in the workplace. Legitimate organizations which have legitimate concerns can often individually justify legislation to protect their intentions; but, taken as a whole, the results can create a chaotic situation.1 Walter Olson’s book, The Excuse Factory, discussed the problems in the workplace. As noted by Tim W. Ferguson’s review of Olson’s book:2

If you’re Anheuser-Busch and fire a black man after 215 unexcused absences over two years, be prepared to lose a suit over race discrimination. If you’re Kodak and a manager tells a salesman he’s “not keeping up with the times,” get out your checkbook for a million-dollar age-bias verdict. And if you’re Duxbury, Mass., and have a firefighter escape a wife-beating rap claiming mental illness and then emerge from the nuthouse, get ready to be told that you must rehire him with back pay and an accommodation for his “disability.” (And then, of course, appeal.)

According to the book review, “Mr. Olson argues that these and many more outrages are the function of a mercenary ‘act of group uplift,’ which seeks ever new ways to ‘shake one’s boss by the ankles until coins roll out.’” The book review suggests that The Excuse Factory is “heavier on anecdotes than statistics”; but, it is noted that federal bias actions, according to accounts, had a 20-fold increase from 1970 to 1989. Olson argues that there is a “vital pivot of identity politics” since group activity is involved based on membership in a “protected class—racial, sexual, physical, lingual, chronological.”

Olson’s book is a conservative criticism; but it is not always the conservative force which creates the conservative impact. As an illustration, within a few days after President Clinton admitted his incorrect conduct with Monica Lewinsky, a New York Times advertisement for a book suggested a new factor to be considered in the workplace, “The Clinton Syndrome”:3

Now that we know what the President did, the question people ask is: Why? Why would Bill Clinton risk engaging in illicit sex within the White House? Why would someone so intelligent be so out of control? Why would such a smart man behave so recklessly?

In this provocative new book, Dr. Jerome Levin, a leading addictions expert at the New School for Social Research, digs deep into Bill Clinton’s past and discovers a pattern of tawdry and destructive relationships consistent with classic sexual addiction. (Emphasis added.)

The problems caused by the addict in the workplace include the double victim issue. The so-called “Clinton syndrome” addiction is a harbinger of the smoking problem, in that it is an “addiction” that creates a unique workplace environmental irony by working both ways. The victim of the “Clinton syndrome” addict may, arguably, sue the addict and the employer in the workplace, under a variety of different legal theories; and, the addict, if punished, may, arguably, assert a disability and seek special protection too. Smoking in the workplace may create the same dilemma; the nonsmoker may maintain that smoking creates a safety-in-the-workplace problem or assert some protected status (such as a disability that precludes exposure to smoke); and the smoker may assert a number of legal theories that could entitle the smoker to special protection, because of an alleged disability, such as addiction to nicotine or other asserted rights.4

Within the past few months, while the tobacco industry has been focusing attention on the lawsuits facing it,5 the push for new tobacco legislation has stalled.6 It has become apparent that Congress will not address directly the myriad of issues raised by tobacco use. In the absence of legislative guidelines it is employers who will have to resolve the battle between those who smoke (maintaining that they are addicted and have various rights to smoke in the workplace) and those who do not smoke (maintaining that they have a right to a smoke-free workplace).

Two recent decisions have invalidated the FDA’s attempt to regulate the tobacco industry and invalidated the EPA’s attempt to regulate secondary smoke.

In the first case, Brown & Williamson Tobacco Corporation, et al. v. Food & Drug Administration, et al., 1998 U.S. App. LEXIS 18821 (4th Cir. August 14, 1998) at 19, involving invalidation of the FDA’s rules, the Fourth Circuit, in an important decision, recognized that the FDA found that “tobacco products are ‘dangerous,’ ‘unsafe,’ and the cause of ‘great pain and suffering from illness such as cancer, respiratory illnesses, and heart disease.’ 61Fed. Reg. at 44,412. In addition, the FDA determined that over 400,000 people die each year from tobacco use. 61 Fed. Reg. at 44,412.”

The Fourth Circuit found that, despite the foregoing, the FDA did not plan to eliminate tobacco but, rather, proposed to regulate it because of the conclusion that withdrawal of tobacco from the market would pose significant health risks to addicted adults, outweighing the risks of leaving tobacco products on the market.7 The court concluded that the FDA’s approach was not permitted by law. The court, therefore, invalidated the FDA’s rulemaking, which involved assessing risks (or splitting the difference), finding that the FDA’s test was improper.8

The court reasoned that in view of the FDA’s characterization of tobacco products as unsafe, the FDA regulations were improper and noted that there were other inconsistencies which the FDA had tried to utilize. The court rejected the FDA’s characterization of the practice being unsafe followed by an inconsistent attempt to allow the product to be utilized, since there could not be reasonable assurances of safety for a product found to be inherently unsafe and dangerous:
However, based on the FDA’s characterization of tobacco products as unsafe, it is impossible to create regulations which will provide a reasonable assurance of safety. Thus, the FDA cannot comply with the terms of the very statutory provision it has chosen as its basis for regulation. In addition to the fundamental conflicts described above, at least six internal inconsistencies arise when tobacco products are forced into the drug or device regulatory schemes of the Act.9

The court majority concluded that while the FDA had the obligation to protect public health and tobacco products present serious health risks, the method used by the FDA justified striking down the FDA regulation.10

The dissent in Brown & Williamson Tobacco Corporation recognized decades of FDA inactivity in this area and legislative history which were relied upon by the majority; but it concluded these were, in part, due to decades of inappropriate withholding of information by the tobacco industry:
The agency’s current position is a response to the increasing level of knowledge about the addictive nature of nicotine and the manufacturer’s deliberate design to enhance and sustain the addictive effect of tobacco products. When the early tobacco-specific statutes were being debated in Congress, the essential link between tobacco and illness had not yet been proven to the satisfaction of all. For instance, during the floor debate on amendments to the FCLAA, Rep. Perkins stated that it is my feeling that not one of the tobacco farmers in my district would knowingly produce any commodity which, when consumed, would cause the dread diseases which have been claimed to be associated with tobacco. But the claims. . . are not proved. Tobacco has been impeached in passion but it had not been convicted in fact. Facts, cold hard facts are the basis upon which Congress should legislate.11

The dissent reasoned that the agency could change its position in view of new information,12 and as a “scientific certainty” nicotine has been shown to be extremely “addictive”:
Under the facts found by the FDA during the rulemaking process, it is now a scientific certainty that nicotine is extremely addictive and that a large majority of tobacco users use the product to satisfy that addiction; even more important to my mind is the new evidence that the manufacturers design their products to sustain such addiction. The administrative record in this case is a perfect illustration of why an agency’s opportunity to adopt a new position should remain open.13

The dissent found that the FDA’s approach was consistent with the law.14 As a result, the dissent contended that due to the majority’s finding, it was inappropriate to strike down the FDA’s approach to addressing an acknowledged health threat:
The FDCA delegates to the FDA the duty of promulgating and enforcing regulations aimed at protecting the nation’s citizens from misbranded and unsafe drugs and food. After years of considering an array of evidence, much of it only recently brought to light, the FDA decided to regulate a product that is estimated to cause some 400,000 deaths a year. While not actually disputing that tobacco products deliver a drug, nicotine, into the body, the majority would deny to the FDA the authority to act to address this acknowledged health threat. I dissent.15

In Flue-Cured Tobacco Cooperatives Stabilization Corporation, et al. v. U.S. Environmental Protection Agency, et al., 1998 U.S. Dist. LEXIS 10986 (M.D.N.C. July 17, 1998), the Middle District in North Carolina invalidated the EPA’s rules on restriction of secondary smoking. The EPA, as the court noted, works along with OSHA to protect safety by promulgating appropriate regulations.16 The court rejected plaintiffs’ effort to maintain that the EPA had no authority to regulate (unlike the approach used by the Fourth Circuit to invalidate the FDA regulations). The federal district court ruled, however, that the EPA had not followed the requirements of the statute, because it had not used an advisory group that included industry representatives.17 As a result the court concluded that the EPA’s advisory group was not proper.18 The court also concluded that the EPA record raised the “ugly possibility that EPA adopted a methodology for each chapter, without explanation based on the outcome sought in that chapter.” See Flue-Cured Tobacco, 1998 U.S. Dist. LEXIS 10986 at 67. The court essentially found that EPA “cherry picked” its data.19 The court concluded it was not obligated to follow any expertise presumptions, because EPA had not complied with the statutory requirements and, therefore, invalidated the EPA processes.20 The court as a result invalidated the passive smoking conclusions of EPA.21

The court did not rule on the issue of whether EPA had the authority to regulate indoor air quality. But the court suggested that there was an issue as to whether Congress could promulgate regulation. The court suggested where the tobacco industry may go next in its efforts to invalidate regulatory controls, noting in the court’s footnote 38, the following:

Given the holdings in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), and United States v. Hartsell, 127 F.3d 343 (4th Cir. 1997), an argument may exist concerning where the federal government derives the authority to regulate indoor air quality, a patently intrastate environmental concern. Being neither interstate or commercial, it is unclear where indoor air finds a nexus with the instrumentalities of interstate commerce or how it substantially affects interstate commercial transactions. The Complaint does not raise these concerns. Since the court is granting Plaintiffs the complete relief requested, it is unnecessary to reach these issues.

See Flue-Cured Tobacco, 1998 U.S. Dist. LEXIS 10986 at 101, n.38.
At this point a number of decisions have evaluated the smoking question in the federal courts; but, there are no rulings that smoking is a disability, notwithstanding the language in the court decision cited above, indicating that those who smoke may be addicted to nicotine. In fact, the Department of Justice, through its promulgated regulations on nondiscrimination on the basis of disability by public accommodations and commercial facilities, recognizes that the Americans With Disabilities Act22 does not require that the public accommodate smokers by allowing the right to smoke in the workplace.23 During the rulemaking there were attempts to maintain that those sensitive to smoke should be regarded as disabled. Requests that an environmental illness known as multiple chemical sensitivity as well as allergy to cigarette smoke be recognized as disabilities were rejected by the department, which declined to state categorically that these types of allergies or sensitivities are disabilities, because the determination as to whether an impairment is a disability depends on whether, given the particular circumstances at issue, the impairment substantially limits one or more major life activities (or has a history of, or is regarded as having such an effect).24 In many smoking cases plaintiffs have been unsuccessful in terms of requiring that smoking in the workplace be stopped at the federal level.25
On the state level, Florida has enacted legislation to regulate indoor air, the Florida Clean Indoor Air Act, F.S. §386.201. The statute’s legislative intent provides:

The purpose of this part is to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code. This part shall not be interpreted to require the designation of smoking areas. However, it is the intent of the Legislature to discourage the designation of any area within a government building as a smoking area.26

At least one city has promulgated a regulation requiring that all prospective city employees sign a sworn affidavit stating that they had not used tobacco products for a year or more. The regulation did not apply to any current city employees but applied to all applicants. The regulation was attacked as invading privacy and the Third District ruled in favor of the city.27 Some cases suggest that employees may be able to use unemployment compensation provisions to justify quitting a position due to health problems aggravated by environmental tobacco smoke.28

In connection with judicial rulings with regard to smokers, there are some guidelines:

1) Courts have confirmed to nonsmokers that in order to collect unemployment compensation benefits, if they leave their positions due to smoking issues, the nonsmokers must work with their employers in developing a reasonable nonsmoking policy. If they leave their positions because an employer refuses to impose an outright ban on all smoking in the workplace, courts have refused to allow unemployment compensation benefits.29

2) Courts have confirmed to smokers that they must also cooperate.30

3) Courts have used workers’ compensation provisions to preclude relief in certain cases. Tobacco use presents interesting issues in the area of workers’ compensation as well. Most states have workers’ compensation statutes preempting employee suits in return for no-fault compensation for on-the-job injuries. Such preemption can protect employers facing an employee lawsuit over alleged health problems related to environmental tobacco smoke in the workplace.31

4) Courts have also tried to extend coverage of legal protection to matters that are not directly related to tobacco use.32

Under the circumstances, a federal statutory provision which preempted all of the state, regional, and local government regulations could provide the best solution for employers in the workplace; there could be a standard procedure throughout the United States that would enable certainty as to how to deal with the smoking issue. The tobacco industry itself was originally argued for such preemption, but only to protect the industry in connection with the original tobacco negotiations.33

Nevertheless, it does not appear that there will be a legislative compromise at the federal level. Even if there were, it would be a compromise which provided the tobacco industry some immunity from litigation and punitive damages in return for payments funded by the ability to continue to sell cigarettes, which would not solve the workplace issues. Unless employers became involved in the legislative process, it is unlikely that there would be any federal legislation to address these issues. It is more likely that the tobacco industry litigation will continue and federal standards will be long in coming.

That leaves the employer with the following options:

1) Attempt to obtain state or local legislation to resolve the problems.

2) Use the failure to obtain any legislative settlement in a federal context as a basis for joining the tobacco industry and others involved in the workplace environment in litigation, so that there can be a larger group responsible for responding to the problem.

3) Negotiate the specific differences that arise in the workplace with employees on a case-by-case basis, to avoid the litigation and the employment problems, wherever possible.

Of these solutions, the last is the most practical in the final analysis for the employer. Employers are required to have a series of workplace rules to preclude or inhibit improper behavior and require accommodation and ensure proper investigation and analysis of problems. Employers should apply these same processes to the smoking issues and try to resolve them on an individual basis. If such matters can be negotiated, this is a concept which is familiar to those dealing with traditional labor law problems and, more recently, employment problems. Courts also seem sympathetic to attempts to resolve issues in the workplace and are being very creative in trying to establish processes to resolve problems, which if not followed by the employees, can be defenses for employers.34

Yogi Berra once said that “you should always go to other people’s funerals or they won’t come to yours.” Much of the tobacco settlement negotiations to date involve funding medical costs by promoting the continuation of the sales of cigarettes, in a manner that may create a similar chronological irony in the workplace. Tobacco industry funding for health care may be achieved at the expense of smoking problems in the workplace and a circular process that should be avoided. The chronology should be set straight; and there should be an effort by employers to work out these problems. In the short run, employers should use self-help and try to adjust disputes as they arise so that they can avoid having someone second-guess a decision to fire, or otherwise discipline, or act, with regard to an employee in the workplace. q

1 See, e.g. Philip K. Howard, The Death of Common Sense 22–53 (1994) (which uses anecdotes to present a cogent argument for repeal of such laws—suggesting anecdotal anarchy can result from going to either the conservative or the liberal extremes).
2 Tim W. Ferguson, The New Shakedown Artists, Wall St. J., May 20, 1997, at A16.
3 See N.Y. Times, Aug. 25, 1998, at B6, col. 1, which described Jerome D. Levin, Ph.D.’s “timely book,” The Clinton Syndrome: The President and the Self-Destructive Nature of Sexual Addiction.
4 See, e.g., LeeAnn Jones and Nicole J. Wade, Sick Building Syndrome: Who Foots the Bill?, 14 The Practical Real Estate Lawyer, May 1998, no. 3, at 9–29, describing the smoking issues setting, numerous defendants that could be involved, and other issues—because of the fact that the heating ventilation and air conditioning systems (HVAC) resulting from the 1970s energy crisis caused office buildings to be “constructed in an attempt to conserve energy and to make them as air tight as possible. Any contaminants that enter the HVAC, including mold, mildew, fungi, bacteria, and viruses, can be distributed throughout the entire building.” Jones and Wade, supra, at 10–11.
5 See, e.g., for a description of the litigation and efforts of the tobacco industry to blame lawyers for the problems and an overview of the Florida experience, John Gibeaut, Getting Burned, 84 A.B.A. J. (Sep. 19, 1998) 42–52.
6 See, e.g., Suein L. Wang, Legal Beat: Tobacco Takes a New Stab at Settlement, Wall St. J., July 10, 1998, at B1, col. 3.
7 Brown & Williamson Tobacco Corporation, et al. v. Food & Drug Administration, et al., 1998 U.S. App. LEXIS 18821 (4th Cir. August 14, 1998) at 20.
8 20–21.
9 22.
10 Id. at 33.
11 Id. at 78.
12 Id. at 79.
13 Id. at 79–80.
14 Id. at 89.
15 67.
16 The Department of Labor also is still in the process of promulgating regulations on indoor clean air, after the department received petitions from public groups opposed to smoking, and even from the AFL-CIO, to establish workplace indoor air quality standards. The department published a request for information on September 20, 1991, to determine if a standard for environmental tobacco smoke is justified and feasible to regulate indoor air quality. A rule proposed on April 5, 1994, pursuant to OSHA would require indoor quality compliance plans and in buildings where smoking is allowed, the proposal requires designated smoking areas in separate, closed rooms with air exhausted outside. Evaluation continues but no “final action” date. See for OSHA guideline litigation Action on Smoking and Health v. C.A.B., 699 F.2d 1209 (D.C. Cir. 1983), supple-mented by 713 F.2d 795 (1983), and 724 F.2d 211 (1984); Federal Employees for Non-Smokers’ Rights, et al., v. United States, 446 F. Supp. 181 (D.D.C. 1978) (OSHA, First and Fifth amendments do not prohibit smoking in federal buildings), aff’d at 598 F.2d 310 without opinion, cert. denied at 444 U.S. 926.
17 Flue-Cured Tobacco Cooperatives Stabilization Corporation, et al. v. U.S. Environmental Protection Agency, et al., 1998 U.S. Dist. LEXIS 10986 (M.D.N.C. July 17, 1998) at 24–25.
18 31–32.
19 Id. at 81–82.
20 See id. at 100–101.
21 Id. at 103.
22 42 U.S.C. §§12101 et seq.
23 Requests for regulations to accommodate smokers also were rejected. See §36.210, Smoking, of Appendix B to Part 36, Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. Part 36, App. B.
24 See §36.104, Definitions, Appendix B to Part 36, Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. Part 36, App. B.
25 See, e.g., Gupton v. Commonwealth of Virginia, 14 F.3d 203 (4th Cir. 1994), cert. denied, 513 U.S. 810; but see Homeyer v. Stanley Tuchin Assoc., Inc., 91 F.3d 959 (7th Cir. 1996) (reversing summary judgment against employee who requested accommodation for allergy aggravated by environmental tobacco smoke). For unsuccessful cases arguing for a right to a smoke-free environment at the federal level, see, e.g., Candelaria v. Greifinger, 1998 U.S. Dist. LEXIS 5531 (N.D.N.Y. April 15, 1998); Emery v. Caravan of Dreams, Inc., 879 F. Supp. 640 (N.D. Tex. 1995), aff’d, 85 F.3d 622 (1996). But see Staron v. McDonald’s Corp., 51 F.3d 353, 357 (2d Cir. 1995) (“[ADA regulation] permits a total ban on smoking if a court finds it appropriate under the ADA.”).
26 Fla. Stat. §382.202.
27 See City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995), cert. denied, 516 U.S. 1043 (1996); and see Case Comments: Constitutional Law: Is the Expectation of Privacy Under the Florida Constitution Broader in Scope Than it is Under the Federal Constitution?, 47 Fla. L. Rev. 287 (April 1995).
28 Some cases grant benefits to the employee, if the employee’s health is truly affected and the employer has not acted to remedy the situation by creating a nonsmoking area or policy; others grant benefits when the employee merely fears that his health may be affected. See McCrocklin v. Employment Development Dept., 205 Cal. Rptr. 156 (Cal. Ct. App. 1984) (court reversed a decision and granted the employee unemployment benefits, when the employee voluntarily left his job in “an inadequately-ventilated noisy space reeking of tobacco smoke.”). For case holding once employee quits and begins receiving unemployment benefits, benefits will not be discontinued simply because employee refuses to accept other work unless the work is in a smoke-free building, see Alexander v. Unemployment Insurance Appeals Bd., 163 Cal. Rptr. 411 (Cal. Ct. App. 1980).
29 See Tuma v. Omaha Public Power District, 409 N.W.2d 306 (Neb. 1987) (“Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee’s work sufficient to disqualify the employee from receiving unemployment compensation benefits.” Id. at 309). See also Mahanger v. Sweeney, 636 N.Y.S.2d 220 ( N.Y. App. Div. 1996) (nonsmokers’ claim for unemployment benefits denied after she resigned since court found employer addressed the employee’s concerns by measures to eliminate smoking on the job). Billman v. Sumrall, 464 So. 2d 382 (La. Ct. App. 1985) (unemployment benefits denied where employee quit, due to smoke allergy, even though employer put employee in a nonsmoking area, separated from other work areas by a wall, and installed a new ventilation system).
30 See Wacher v. Hartnett, 573 N.Y.S.2d 781 (N.Y. App. Div. 1991) (refusing to grant unemployment benefits to a secretary who left her job after she was unable to comply with her employer’s new nonsmoking policy since the secretary could have left the office for cigarette breaks).
31 See Roos v. Ally and Gargano, Inc., 1993 Conn. Super. Lexis 2142 (Super. Ct. 1993) (asthmatic employee sought damages for physical injuries and loss of income due to the employee’s forced resignation as a result of the employer’s refusal to enforce an adequate nonsmoking policy in the workplace; but the court refused to carve out an exception to workers’ compensation preemption for injuries relating to smoking, and granted the employer’s motion for summary judgment); and note, it is not just nonsmokers who are seeking to collect benefits under the workers’ compensation statutes. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. Ct. App. 1992) (workers’ compensation claimant smoked and sought benefits due to a total and temporary mental stress disability caused by her employer’s implementation of a no-smoking ban; the court rejected the employee’s claim, after finding that she met three of four statutory requisites for workers’ compensation liability, because: she did not show smoking ban was unique to her employment, smoking bans are common in employment and commercial locations and Colorado law denies workers’ compensation benefits for stress disabilities if they are based on facts and circumstances common to all fields of employment).
32 As an example, a court granted benefits to a smoker suffering injuries relating to tobacco use, but unrelated to tobacco smoke, in Pan American World Airways v. Wilmot, 492 So. 2d 1373 (Fla. 1st D.C.A. 1986) (flight attendant was entitled to workers’ compensation benefits after she burned her hand during a layover, when she attempted to light a cigarette; the court rejected the employer’s position that smoking was a personal and hazardous habit unrelated to the employee’s job and, thereby, created some additional coverage by the application of the worker’s compensation law).
33 See, e.g., Milo Geyelin, Tobacco Negotiations to Resume After Massachusetts Walks Out, Wall St. J., Sept. 1, 1998, at B8, col. 2 (noting original concept was that tobacco companies “would have paid $368.5 billion over 25 years in exchange for immunity from various lawsuits.”). See also Barry Meier, In Latest Tobacco Negotiations, State Lacks Clear Health Goals, N.Y. Times, July 27, 1998, at A10, col. 1 (noting in the original settlement, the cigarette industry members were under the “belief that federal legislation would protect them from some tobacco lawsuits” although there is little prospect of such legislation now; the original concept was that the monies to be paid, in return for the immunity would be funded by the ability to sell the cigarettes in the future).
34 See, e.g., Gebser and McCullough v. Lago Vista Independent School District, 1998 U.S. LEXIS 4173 (June 22, 1998) and the dissenting opinions.

Joseph Z. Fleming, P.A., partner in Alley and Alley/Ford & Harrison LLP and resident partner in the Miami office, is a past chair of the Labor and Employment Law Section, as well as past chair of the Environmental and Land Use Section of The Florida Bar. He received his J.D. from the University of Virginia School of Law and his LL.M. in labor law from the New York University Graduate School of Labor Law. He is one of five members of the ALI-ABA’s Labor Law Advisory Group.

José I. León is an associate with the law firm of Alley and Alley/Ford & Harrison LLP. He received his undergraduate degree from the University of Miami, and his J.D. from the University of Chicago School of Law.
This column is submitted on behalf of the Labor and Employment Law Section, Kevin E. Hyde, chair, and F. Damon Kitchen, editor.

Labor and Employment Law